Appellant has petitioned for a rehearing and, among other things, seems to feel aggrieved because the Chief Justice and the writer did not state the grounds on which we concurred "in the conclusion." It seemed to us enough that we concurred in an affirmance of the judgment. I felt at the time, and still entertain no doubt, that the judgment of the trial court is just and equitable and that it should be affirmed. The Chief Justice expressed the same conclusion. I thought, however, at the time, and still think, that the decision is better grounded on the rule of estoppel in pais than that of either adverse possession or prescription. Since no three members of the court are agreed upon the fundamental rule on which the decision should be grounded, it seemed wholly useless to enter into any discussion as to the law governing the case. Now that a petition for rehearing has been presented, I will briefly state the reason why I think the judgment of the trial court is correct. *Page 133
Respondent's predecessor, Blaylock, entered into the possession and use of this roadway, with the full knowledge and consent of appellant's brother, Will Hobson, who was in possession of the premises under agreement to purchase. Blaylock's use, and the purpose for which he took possession, was known to the tenant in possession and must, in all reason, have been known to appellant, the owner of the fee who resided within a few miles of this land. Furthermore, in the face of this condition and these circumstances, with full knowledge of the purpose for which Blaylock was preparing this roadway, the Hobsons stood by and not only permitted but encouraged the expenditure by Blaylock of more than $500 in the construction of a bridge across the canal. This expenditure can only serve for one purpose, and that is, for a passageway or roadway across the canal.
They not only made no protest against this improvement by respondent's predecessor in interest but immediately upon its completion began to use it, themselves, jointly with Blaylock. They allowed Blaylock to grade the road and to use material taken off of appellant's place, for fencing the roadway. Appellant made no objection to the use of this road, according to his own admission, until '34 or '35; and according to the testimony of Mr. Peavey, agent of respondent, not until the spring of '36. At any rate, no objection seems to have been made until after respondent had foreclosed on the tract of land for which this roadway and bridge were constructed and for which a right of way for travel was necessary. To allow appellant now to exclude respondent, its tenants, agents or successors from the use of the roadway, would be to give appellant the benefit of all these improvements (the grading of the road, building of fences, construction of bridge across canal), without any consideration therefor and to the damage and detriment of respondent, in whatever sum it might cost to procure another roadway to its premises. The doctrine of estoppel in pais is peculiarly applicable to this state of facts and precludes appellant at this late date from denying respondent's right to the joint use, with appellant, of this roadway. (State of Missouri ex Inf. Shartel, etc., v. MissouriUtilities Co., 331 Mo. 337, 53 S.W. (2d) 394, 89 A.L.R. 607;James v. Nelson, 90 Fed. (2d) 910; *Page 134 Noble Gold Mines Co. v. Olsen, 57 Nev. 448, 66 P.2d 1005.)
It has been suggested in conference by one of my associates that plaintiff did not plead estoppel and that therefore the judgment could not rest upon that principle. My reply to this suggestion is, that, in the first place, no question is raised in this court as to the sufficiency of the complaint. In the second place, that the allegations of the complaint are as ample to support the judgment on the theory of estoppel in pais as they are to support a judgment on adverse possession, prescription or any other theory. The first paragraph of the complaint alleges plaintiff's corporate existence, which was admitted by defendant. The remainder of the complaint in full is as follows:
"2. That the plaintiff was on or about the year of 1928 entitled to the joint use of a right of way commencing from the North line of Section Eight (8), Township Ten (10) South, Range Fifteen (15), East of the Boise Meridian, and being a part thereof, and running South along the East line of the East Half (E 1/2) of the Northwest Quarter, Section Eight (8), Township Ten (10) South, Range Fifteen (15), East of the Boise Meridian, Twin Falls County, State of Idaho, and being a part thereof, to the Low Line Canal. The said Right of Way being about Eighteen feet in width, and ever since has been and now is entitled to said use of said Right of Way.
"3. That on or about the 1st day of March, 1936, the defendant, without any right whatever, has prohibited and does prohibit the use of said Right of Way, and has notified the plaintiff or its agents that they cannot use said Right of Way and has posted signs 'No Trespassing' at the entrance of said Right of Way; that said Right of Way was graded by B.F. Blaylock, during the time he was owner and in possession of the Southwest Quarter of the Northeast Quarter and that part of the Northwest Quarter of the Northeast Quarter of Section Eight (8), Township Ten (10) South, Range Fifteen (15), East of the Boise Meridian, Twin Falls County, State of Idaho, the plaintiff herein, having a real estate mortgage on same, the said B.F. Blaylock also constructed a bridge at his own expense across the Low Line *Page 135 Canal, which is partly on the property belonging to this plaintiff and partly on the property belonging to the defendant herein; that the only ingress to and egress from plaintiff's land is by this right of way; that the defendant has ordered the tenant of the plaintiff to keep out of said Right of Way, and thereby interferes materially with the right of plaintiff to the ingress and egress from his said property; that defendant has by his acts aforesaid, diminished the value of plaintiff's property in the sum of $500.00, to plaintiff's damage in the sum of $500.00."
It will be seen from the foregoing that paragraph three states the facts on which estoppel in pais might be predicated.
Another thing about this case, worthy of observation, is this: Respondent in no way seeks to interfere with or exclude appellant in the use of this roadway. It concedes to appellant the like right to use the road at any and all times, so that its use of the easement is not exclusive and in no way interferes with appellant's use thereof in any and every way he may desire to use it, so long as he does not obstruct it or prevent respondent's use thereof. It would clearly be inequitable, unjust and unfair to now preclude respondent the right to pass over this roadway or to give its exclusive use and occupancy to appellant. The petition is denied.
Holden, C.J., concurs.